Facts underlying a conviction
|Appeal Judgement - 16.10.2007||
129. […] a trier of fact is called upon to make findings beyond reasonable doubt based on all of the evidence on the trial record – direct or circumstantial – not only on facts which are essential to proving the elements of the crimes and the forms of responsibility. There might be other facts that need to be proven beyond reasonable doubt due to the way in which the case was pleaded in the indictment and presented during trial to the Defence and to the Trial Chamber. All facts underlying the elements of the crime or the form of responsibility alleged as well as all those, which are indispensable for entering a conviction, must be proven beyond reasonable doubt.
130. In Vasiljević, for example, the Appeals Chamber addressed very clearly the issue that a specific factual finding may or may not be necessary to reach a conclusion beyond reasonable doubt as to the element of a crime, depending on the specific circumstances of the case and on the way the case was pleaded.
 Ntagerura et al. Appeal Judgement, para. 174; Blagojević and Jokić Appeal Judgement, para. 226.
 The Vasiljević Trial Chamber had found that Mitar Vasiljević had forcibly transported seven Muslim men to the eastern bank of the Drina River, where they were shot. Despite not being satisfied that Vasiljević had personally killed any of the victims, the Trial Chamber considered other factual findings (reached beyond reasonable doubt) and concluded that Vasiljević indeed shared the intent to kill them (Vasiljeviæ Trial Judgement, paras 112, 113 and 208). It convicted him for persecution pursuant to Article 5(h) of the Statute and for murder pursuant to Article 3 of the Statute (Vasiljeviæ Appeal Judgement, paras 2 and 88). The Appeals Chamber subsequently reversed one of the findings underpinning Vasiljević’s conviction, namely that “he had knowledge that the seven Muslim men were to be killed and not exchanged based on the information provided to him” (Vasiljeviæ Appeal Judgement, para. 124). The Appeals Chamber then concluded that, since the Trial Chamber had found that Vasiljević knew that the seven men would be killed when he escorted them to the bank of the Drina River and stood behind them shortly before the shooting occurred, it had been able to establish his mens rea beyond reasonable doubt, despite the fact that he had not fired his weapon. However, after the Appeals Chamber overturned the finding that Vasiljević knew that the men were to be killed at the time he accompanied the group, the remaining factual findings did not suffice to reach the conclusion, as the only reasonable inference available on the evidence, that he had the intent to kill the seven Muslim men (Vasiljeviæ Appeal Judgement, para. 131). In the circumstances of that case, that finding was necessary to reach a conclusion beyond reasonable doubt as to one element of the crime. Nonetheless, this was not strictly a finding on an element of the crime in abstracto; it had become indispensable for entering a conviction due to the way the case had developed on the basis of the pleadings and of the evidence presented.